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For years, Democrats have bitterly complained that a Republican-controlled Senate scuttled many of President Bill Clinton’s circuit court nominations by denying them Judiciary Committee hearings and votes. Now that the Democrats have retaken the Senate, they are poised to exact revenge by burying President George W. Bush’s nominees. Or the president and Senate Democrats could reduce tensions by working together to confirm mutually agreeable nominees. You’ll find little grounds for optimism about the potential for a truce between the White House and Senate in Benjamin Wittes’ new book, Confirmation Wars: Preserving Independent Courts in Angry Times. Wittes, a Washington Post editorial writer and former Legal Times reporter, offers a concise and refreshingly nonpartisan history of how judicial confirmations became stuck in partisan muck. He punctures many of the myths that both sides peddle about the history of confirmations. Nominees’ ideologies have long been a consideration, despite conservative claims to the contrary. And liberals have often wildly exaggerated the threat posed by conservative nominees. As Wittes correctly concludes, there’s plenty of blame to go around. Both sides have adopted a “norm of mutual hypocrisy” in which they sanctimoniously claim innocence while blaming problems with the process on the other guy. Both sides distort the records and demonize nominees. And both sides use whatever procedural devices they have at their disposal to block or at least delay nominees they don’t like, in the Judiciary Committee and on the Senate floor. The two parties, Wittes says, are “fighting a form of political warfare.” Wittes interviews the most prominent recent victim of that process, Chief Justice John Roberts Jr., though what Roberts offers are mostly platitudes. For instance, Roberts says some of the ads aired against him were “beyond the pale.” Press inquiries about his personal life were “wholly inappropriate.” Still, he calls the confirmation process “a very uplifting, educational, informative discussion” about “the role of the courts.” Wittes shares none of that optimism, particularly about the Senate Judiciary Committee’s televised hearings, which he concludes should be abandoned. He’s absolutely right that the hearings have become useless for their intended purpose. Nominees say as little as possible — and for good reason. Just ask Robert Bork. Why provide your executioners the rope? But his suggestion that presidents simply refuse to let their nominees appear before the Judiciary Committee or that nominees only testify behind closed doors is, if not naive, wholly unrealistic. Persuading senators to give up the television cameras would be like persuading moths to stop gathering around a flame. Just look at the time senators dedicated to making speeches rather than asking questions during the hearings for Roberts and Justice Samuel Alito Jr. This isn’t about eliciting information. This is about mugging for the cameras. The current dysfunctional process does serve a purpose. Senators get a platform to display fealty to their bases. Yet they seem little concerned about the harm they might cause to judicial independence. To be fair, senators are understandably frustrated about nominees’ silence. The confirmation process has become the sole opportunity to exercise any sort of check on the judicial branch. The unfortunate reality is that there is no good solution to fixing the judicial nomination process as long as the courts continue to be viewed as such a prize by both sides. Any progress in the immediate future would require mutual disarmament. Bush would have to abandon some of his most provocative circuit court nominees. Democrats would have to stop reflexive opposition and give up procedural delays. (The Democrats’ brief control of the Senate in 2002 does not give much reason to be hopeful.) Wittes offers some advice for the Senate’s new Democratic majority should a Supreme Court vacancy open up. He suggests Senate Democrats should focus on exerting more pressure during the consultation phase before the president selects a nominee. During the Alito and Roberts nominations, the White House consultation was an empty gesture. Bush’s senior aides called Democratic senators, but there’s no evidence the White House actually paid attention to anything the senators said. Perhaps the best that anyone can hope for is the sort of consultation that Clinton engaged in with Sen. Orrin Hatch (R-Utah) when a Supreme Court vacancy opened up. When Clinton said he was leaning toward then-Interior Secretary Bruce Babbitt, Hatch warned that Babbitt’s confirmation “would not be easy.” Hatch asked the president if he was considering others, including Stephen Breyer and Ruth Bader Ginsburg, both of whom were later nominated and easily confirmed. Sadly, even that modest amount of cooperation now seems hopelessly anachronistic.
Seth Stern is a reporter for Congressional Quarterly .

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